Citation Nr: 21032271 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-50 168 DATE: May 26, 2021 ORDER Service connection for hypertension is denied. An initial rating in excess of 20 percent for right shoulder tendinopathy with degenerative joint disease is denied. FINDINGS OF FACT 1. The Veteran's hypertension did not have its clinical onset during his active service and did not manifest to a compensable degree within one year from the date of separation from active service. 2. The evidence does not show that the Veteran's right shoulder tendinopathy with degenerative joint disease is productive of limitation of motion midway between side and shoulder level, flexion and/or abduction limited to 45 degrees; ankylosis; a fibrous union, nonunion or the loss of the head of the humerus; or recurrent dislocation at the scapulohumeral joint. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a disability rating in excess of 20 percent for right shoulder tendinopathy with degenerative joint disease are not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code (DC) 5200-03. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1980 to August 2000, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Roanoke, Virginia Regional Office (RO). In October 2019, the Veteran and his spouse testified at a Central Office Hearing before the undersigned Acting Veterans Law Judge (AVLJ). A hearing transcript is in the record. In May 2020, these issues were remanded by the Board. The issue of entitlement to service connection for obstructive sleep apnea was also previously on appeal. However, in a December 2020 rating decision, the RO granted service connection. The issue in controversy has been resolved and is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). 1. Hypertension The Veteran seeks service connection for hypertension. See January 2013 statement in support of claim; January 2015 notice of disagreement (NOD). In the Veteran's January 2015 NOD, he reported having experienced elevated blood pressure readings during service. At the October 2019 Board hearing, the Veteran testified to having experienced elevated blood pressure readings during service and that he met the criteria for pre-hypertension or stage 1 hypertension during service. See October 2019 Board hearing transcript, p. 10. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Hypertension is classified as a chronic disease eligible for presumptive service connection under 38 C.F.R. § 3.309(a). The Board may consider presumptive service connection for chronic diseases on three bases: (1) chronicity during service, (2) continuity of symptomatology since service, and (3) manifestations to a degree of 10 percent disabling or more within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA purposes, hypertension is defined as diastolic blood pressure predominantly at 90 millimeters (mm) or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101. A 10 percent rating for hypertension under Diagnostic Code 7101 is assigned when: (1) diastolic pressure is predominantly 100 or more; or (2) systolic pressure is predominantly 160 or more; or (3) if there is a history of diastolic pressure predominantly 100 or more with continuous medication for required control. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. The Board acknowledges that the Veteran has a current diagnosis of hypertension. See August 2007 VA treatment record noting a past medical history positive for hypertension; October 2007 VA treatment record noted that the Veteran had been diagnosed with hypertension; August 2011 private treatment record noted a history of hypertension; August 2012 private treatment record noted a diagnosis of hypertension; December 2012 Disability Benefits Questionnaire (DBQ) (the Veteran's private provider diagnosed the Veteran with hypertension; however, no etiology opinion was provided); April 2013 private treatment record; September 2013 VA treatment record reflects a diagnosis of controlled hypertension; May 2015 DBQ (reflects a diagnosis of hypertension; however, no medical provider signed the DBQ). Further, the Board acknowledges that the Veteran's service treatment records (STRs) reflect elevated blood pressure readings. However, the Board finds that these readings do not represent a diagnosis of hypertension for VA purposes. There is no evidence of diastolic blood pressure of 90 or greater during service. While the evidence shows that in June 1996, the Veteran has systolic pressure of 160 or greater during a treadmill study, this does not represent hypertension for VA purposes as these were not confirmed by readings taken two or more times on at least three different days. Specifically, the STRs show the following blood pressure readings. A July 1981 STR reflects a blood pressure reading of 118/74. In a November 1983 service medical examination report, no vascular abnormalities were noted, and the Veteran's blood pressure readings were 110/80, 108/80 and 112/80. In a November 1983 service medical history report, the Veteran answered in the negative to the question of whether he then had, or once had high or low blood pressure. STRs dated March 1984 and July 1985 reflect blood pressure readings of 122/72 and 128/70, respectively. A January 1986 STR reflects a blood pressure reading of 102/60. In a May 1986 service medical examination report, no vascular abnormalities were noted, and the Veteran's blood pressure reading was 120/78. In June 1986, the Veteran underwent an in-service exercise treadmill study. No history of hypertension was noted, and the Veteran's blood pressure was not elevated. Before the treadmill study, blood pressure readings were 112/68 at supine and 124/80 at standing. During the test, the Veteran's blood pressure readings were 125/70, 145/60, 165/60, 180/60, and 180/60 measured at 3-minute intervals for 15 minutes, respectively. After the treadmill study, blood pressure readings were 160/50 immediately after, and 170/50, 155/55, 150/60, 145/65, and 135/60 measured at 2-minute intervals for 10 minutes, respectively. STRs dated July 1986 and August 1987 reflect blood pressure readings of 128/70 and 124/60, respectively. An October 1987 STR reflects blood pressure readings of 118/64 and 110/60. STRs dated July 1989, August 1989 and February 1992 reflect blood pressure readings of 120/60, 106/74 and 152/82, respectively. In a November 1992 service medical examination report, no vascular abnormalities were noted, and the Veteran's blood pressure reading was 131/66. STRs dated February 1993, November 1993, October 1995, and December 1995 reflect blood pressure readings of 132/70, 110/50, 139/85, 128/71, respectively. In a July 1996 service medical examination report, no vascular abnormalities were noted, and the Veteran's blood pressure reading was 111/69. STRs dated October 1998 and April 2000 reflect blood pressure readings of 120/70 and 132/86, respectively. Pursuant to the May 2020 remand directives, a VA medical opinion was provided in August 2020. After a review of the medical records, the VA clinician provided a negative nexus opinion regarding the relationship between the Veteran's hypertension and his service. In his rationale, the clinician explained that, while it is possible that the Veteran had a few isolated transient elevated blood pressure readings while service, he did not have this on a consistent basis. He also noted that while the cause of hypertension is not exactly known in many cases, there are many risk factors including aging, genetics, family history, obesity, lack of physical activity, too much salt in the diet, being a male, and ethnicity. He determined that the Veteran's hypertension was onset after 2004, as the Veteran's March 19, 2004 private treatment record noted a past medical history negative for hypertension. The clinician determined the onset of hypertension was 2007 as it is diagnosed in an August 2007 private treatment record. The VA clinician also specifically addressed the elevated blood pressure readings in the June 1986 STRs. He explained that the blood pressure is normally supposed to go up when someone exercised (such as a treadmill exercise test), and that this was a normal physiological response and not considered hypertension. He explained that for hypertension to be diagnosed, it has to be resting blood pressure while the patient is seated for many minutes (three minutes in a chair with feet flat on floor). The Board finds the August 2020 VA clinician's opinion to be the more probative evidence of record as it included a review of the medical records and detailed rationale. There are no contrary medical opinions of record. The only contrary evidence of record are the Veteran's contentions that his hypertension is related to his service. However, the Board finds that there is no evidence in the record indicating that the Veteran is qualified to provide a medical diagnosis or opinion. While the Veteran, as a lay person, is competent to provide evidence regarding the symptoms he observed, he is not competent to offer an opinion as to the etiology of his hypertension as this matter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). In sum, the preponderance of the probative evidence shows that the Veteran's hypertension did not have its clinical onset during his active service and did not manifest to at least a compensable degree within one year from the date of separation from active service. Based on the foregoing, the Veteran's claim of entitlement to service connection for hypertension is denied. 2. Right shoulder The Veteran contends that his right shoulder disability is more severe than the currently assigned rating. In his NOD, he stated that he had other impairment of recurrent dislocation of scapulohumeral joint, with infrequent episodes, and guarding of movement only at shoulder level. See January 2015 NOD. At the October 2019 Board hearing, the Veteran testified that his shoulder had dislocated in the past, but not recently; that he used ointment on his shoulder; and that he was unable to raise his arm perpendicular to the floor. See October 2019 Board hearing transcript, pp. 22-25. Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38C.F.R. Part 4. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's right shoulder tendinopathy with degenerative joint disease is currently rating 20 percent disabling under DC 5201-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. A 20 percent rating is the maximum rating under DC 5003. Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71, DCs 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Here, the Veteran is right-hand dominant. See December 2020 DBQ. Under DC 5201, the assignment of a 20 percent disability evaluation is warranted when arm motion is limited to shoulder level in the major or minor arm. If arm motion is limited midway between the side and shoulder, a 20 percent rating is warranted for the minor arm and a 30 percent rating is warranted for the major arm. If arm motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor arm and a 40 percent rating is warranted for the major arm. Under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder encompasses forward elevation (flexion) and abduction to 180 degrees. DC 5200 pertains to ankylosis of scapulohumeral articulation. A rating of 30 percent is warranted for favorable abduction to 60 degrees, can reach mouth and head. A rating of 40 percent is warranted for intermediate between favorable and unfavorable; and a rating of 50 percent is warranted for unfavorable ankylosis, where abduction is limited to 25 degrees from the side. DC 5202 pertains to impairment of the humerus. A rating of 30 percent is warranted for recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. Higher ratings of 50, 60, and 80 percent are warranted where there is fibrous union of the humerus, nonunion of the humerus, and loss of the head of the humerus, respectively. DC 5203 pertains to impairment of the clavicle or scapula and does not provide a rating higher than 20 percent. The Board notes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations since February 7, 2021. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the new criteria, effective February 7, 2021, the change, in pertinent part, is that DC 5201 clarifies that "midway between side and shoulder level" means flexion and/or abduction is limited to 45 degrees. The November 2013 DBQ shows right shoulder flexion to 170 with painful motion at 90, and abduction to 170 with painful motion at 90. The Veteran reported flare-ups. However, when asked to describe any such additional limitation due to pain, weakness, fatigability or incoordination, and if feasible to comment in terms of degrees of additional range of motion loss due to pain on use or during flare-ups, the examiner determined there were none. The December 2020 DBQ shows flexion to 90 degrees and abduction to 85 degrees. The examiner noted that the examination was being conducted during a flareup. Pain significantly limited functional ability with repeated use over time and during flareups but did not cause additional limitation of motion of the right shoulder The medical evidence does not show ankylosis; a fibrous union, nonunion or the loss of the head of the humerus; or recurrent dislocation at the scapulohumeral joint. See November 2013 DBQ; December 2020 DBQ; VA treatment records. The Board has considered the old rating criteria for the claim prior to February 7, 2021 and both the old and the new rating criteria since February 7, 2021. The Board finds that a rating in excess of 20 percent is not warranted for right shoulder tendinopathy with degenerative joint disease under either the new or the old criteria as the evidence does not show that the Veteran's right shoulder tendinopathy with degenerative joint disease is productive of limitation of motion midway between side and shoulder level, flexion and/or abduction limited to 45 degrees; ankylosis; a fibrous union, nonunion or the loss of the head of the humerus; or recurrent dislocation at the scapulohumeral joint. The December 2020 VA examination reflects there was pain with weight bearing of the right shoulder; however, there is no indication the pain on weight bearing resulted in additional limitation in range of motion of the right shoulder. Further, there was no evidence of pain on passive range of motion or on non-weight bearing testing of the right shoulder. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Therefore, the preponderance of the evidence is against assignment of a rating in excess of 20 percent for right shoulder tendinopathy with degenerative joint disease and the appeal is denied. The Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.